Petition for Writ of Certiorari — Whitman v. American Trucking Assns., Inc.
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No. Of prs *
In the Supreme Court of the Anited States
supreme Court, G. 8.
0 FILED
991257 JAN 27 2000
CAROL M. BROWNER, ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY, ET AL.,
PETITIONERS
AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
GARY S. GUZY
General Counsel
ROBERT G. DREHER
Deputy General Counsel
GERALD K. GLEASON
MICHAEL L. Goo
AMEY W. MARRELLA
JAN M. TIERNEY
KEVIN W. MCLEAN
Attorneys
Environmental Protection
Agency
Washington, D.C. 20460
SETH P. WAXMAN
Solicitor General
Counsel of Record
LOIS J. SCHIFFER
Assistant Attorney General
LAWRENCE G. WALLACE
Deputy Solicitor General
JEFFREY P. MINEAR
Assistant to the Solicitor
General
DAVID J. KAPLAN
MARY F. EDGAR
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
1. Whether Section 109 of the Clean Air Act, 42
U.S.C. 7409, as interpreted by the Environmental Pro-
tection Agency (EPA) in setting revised National
Ambient Air Quality Standards (NAAQS) for ozone and
particulate matter, effects an unconstitutional delega-
tion of legislative power.
2. Whether the court of appeals exceeded its
jurisdiction by reviewing, as a final agency action that
is ripe for review, EPA’s preliminary preamble state-
ments on the scope of the agency’s authority to
implement the revised “eight-hour” ozone NAAQS.
3. Whether provisions of the Clean Air Act Amend-
ments of 1990 specifically aimed at achieving the long-
delayed attainment of the then-existing ozone NAAQS
restrict EPA’s general authority under other provi-
sions of the CAA to implement a new and more protec-
tive ozone NAAQS until the prior standard is attained.
(I)
II
PARTIES TO THE PROCEEDING
1. Petitioners are the respondents in the court of
appeals: Carol M. Browner, the Administrator of the
Environmental Protection Agency, and the Environ-
mental Protection Agency (EPA).
The following parties intervened in support of EPA
in the court of appeals: the American Lung Associa-
tion, the Commonwealth of Massachusetts and the
State of New Jersey.
The following States appeared as amici curiae in sup-
port of EPA in the court of appeals: New York, Con-
necticut, New Hampshire and Vermont.
2. Respondents are the petitioners in the court of
appeals:
Alliance of Automobile Manufacturers (formerly
American Automobile Manufacturers Association)
American Farm Bureau Federation
American Forest and Paper Association
American Iron and Steel Institute
American Petroleum Association
American Portland Cement Alliance
American Public Power Association
American Trucking Associations, Inc.
Appalachian Power Company
Baltimore Gas and Electric Company
James Bassage
Burns Motor Freight, Inc.
Carolina Power & Light Company
Centerior Energy Corporation
Central and South West Services, Inc.
Central Hudson Gas & Electric Corporation
Central Illinois Light Company
Central Illinois Public Service Company
Central Power & Light Company
III
Chamber of Commerce of the United States of
America
Chemical Manufacturers Association
CINergy Corporation
Citizens for Balanced Transportation
Cleveland Electric Company
Columbus Southern Power Company
ComEd Company
Consumers Energy Company
Dayton Power & Light Company
Delmarva Power & Light Company
The Detroit Edison Company
Duke Energy Company
Duquesne Light Company
Edison Electric Institute
Equipment Manufacturers Institute
Company
Indiana Michigan Power Company
Indianapolis Power & Light Company
Jacksonville Electric Authority
Judy’s Bakery, Inc.
Kansas City Power & Light Company
Kennecott Energy and Coal Company
Kennecott Holdings Corporation
Kennecott Services Company
Kentucky Power
Utilities
Louisville Gas and Electric Company
IV
Madison Gas and Electric Company
David Matusow
Brian McCarthy
Meridian Gold Company
The State of Michigan
Midwest Ozone Group
Minnesota Power
Monongahela Power Company
National Association of Manufacturers
National Association of Home Builders
National Automobile Dealers Association
National Coalition of Petroleum Retailers
National Indian Business Association
National Mining Association
National Paint and Coatings Association
National Petrochemical & Refiners Association
National Rural Electric Cooperative Association
National Stone Association
National Small Business United
Nevada Mining Association
Newmont Gold Company
Non-Ferrous Founders Society
Northern Indiana Public Service Company
PP&L Resources
Public Service Company of New Mexico
Richard Romero
Salt River Project Agricultural Improvement &
Power District
Small Business Survival Committee
South Carolina Electric & Gas Company
Southern Company
Tampa Electric Company
Toledo Edison
Union Electric Company |
United Mine Workers of America, AFL-CIO
The following parties intervened in support of peti-
tioners American Trucking Ass’ns, et al., in the court of
appeals:
American Road and Transportation Builders
Association
Atlantic Electric Company
— her erty om
The following persons appeared as amici curiae in
support of petitioners American Trucking Ass’ns, et al.,
in the court of appeals:
Representative Tom Bliley
Senator Orrin G. Hatch
TABLE OF CONTENTS
Page
Opinions below 1
Jurisdiction 1
Constitutional, statutory and regulatory provisions
involved 2
Statement 2
Reasons for granting the petition 9
Conclusion 30
TABLE OF AUTHORITIES
Cases:
ALA Schechter Poultry Corp. v. United States,
295 U.S. 495 (1935) 12, 14
Abbott Labs. v. Gardner, 387 U.S. 136 (19877 24
American Airlines, Inc. v. Herman, 176 F.3d 283
(5th Cir. 1999) 23
American Lung Ass'n v. EPA, 134 F.3d 388 (D.C. Cir.
1998), cert. denied, 120 S. Ct. 58 (1999) 10
American Petroleum Inst. v. Costle, 665 F 2d 1176
(D.C. Cir. 1981), cert. denied, 455 U.S. 1084 (1982)... 10
American Power & Light Co. v. SEC, 329 U.S. 90
(1946) 12, 13, 14, 17
Bennett v. Spear, 520 U.S. 154 (1997) 21
Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984) 16, 24, 25, 28, 29
Dow Chem. Co. v. EPA, 832 F 2d 319 (5th Cir. 1987) ..... 22
FPC v. Conway Corp., 426 U.S. 271 (1976) 12, 18
Hindes v. FDIC, 137 F.3d 148 (3d Cir. 1998) 23
Lead Indus. Ass'n v. EPA, 647 F.2d 1130 (D.C. Cir.),
cert. denied, 449 U.S. 1042 (1980) 10, 15
Lichter v. United States, 334 U.S. 742 (1948) ................... 12
Mistretta v. United States, 488 U.S. 361 (1989) ......... 13, 16
Mobil Exploration & Producing U.S., Inc. v. Depart-
ment of the Interior, 180 F.3d 1192 (10th Cir. 1999) 23
VIII
Cases Continued:
Montana -· Dakota Util. Co. v. Northwestern Pub. Serv.
Co., 341 U.S. 246 (1951)
NBC v. United States, 319 U.S. 190 (1943)
Natural Resources Defense Council, Inc. v. EPA,
902 F. 2d 962 (1990) , opinion vacated in part, 921 F.2d
326 (D.C. Cir.), cert. denied, 498 U.S. 1082 (1991) .......
Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726
(1998)
Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43 (1998) .....
Skinner v. Mid-America Pipeline Co., 490 U.S. 212
(1989)
South Terminal Corp. v. EPA, 504 F.2d 646 (Ist Cir.
1974)
Touby v. United States, 500 U.S. 160 (1991) .................
U.S. Bancorp Mortgage Co. v. Bonner Mall Partner-
ship, 513 U.S. 18 (1994)
Vermont Yankee Nuclear Power Co. v. Natural Re-
sources Defense Council, Inc., 435 U.S. 519 1978)
Western Ill. Home Health Care, Inc. v. Herman,
150 F.3d 659 (7th Cir. 1998)
Yakus v. United States, 321 U.S. 414 (1944)
Constitution and statutes:
U.S. Const.:
Art. I
§ 8, Cl. 18
Art. III
Act of Nov. 15, 1990, Pub. L. No. 101-549, 104 Stat.
2399
Clean Air Act, 42 U.S.C. 7401 et seq.
§ 107, 42 U.S.C. 7407
§ 107(d), 42 U.S.C. 7407(d) 20, 22, 24, 26,
§ 107(d)(1), 42 U.S.C. 740d)
§ 107(d(1X(C), 42 U.S.C. 7407(d 1 (C)
§ 107(d)(4)(A), Ta ,,“)
§ 108, 42 U.S.C. 7408
§ 108(a)(1A)(B), 42 U.S.C. 740 aN KA-)
2 S w
8
S SSE SS
Statutes—Continued:
10800 ), 42 U.S.C. 7408(aX2)
Page
8, 18
§ 108(aX'2)(A)-(B), 42 U.S.C. 7408(a(2A)-(B)
2, 3, 4, 7, 9, 18, 16, 18, 19
3
§ 109, 42 U.S.C. 7409
10900, 42 U.S.C. 7409(b)
§ 109(b)(1), 42 U.S.C. 7409(b)(1)
3, 7, 18
§ 10%(d), 42 U.S.C. 7409(d)
§ 109(d)(1), 42 U.S.C. 740d
§ 109(d)(2), 42 U.S.C. 740d) 2)
§ 10%(d)(2B), 42 U.S.C. 7409(d(2\B)
§ 110, 42 U.S.C. 7410
§ 172, 42 U.S.C. 7502
§ 172(a), 42 U.S.C. 7502(a)
§ 172(aX(1)(B), 42 U.S.C. 7502(aX1(B)
§ 172(aX1XC), 42 U.S.C. TS
§ 172(aX(2), 42 U.S.C. 7502(aX2)
§ 172(aX2X(D), 42 U.S.C. 7504 D)
§ 172(c), 42 U.S.C. 7502(c)
§ 181, 42 U.S.C. 7511
18100, 42 U.S.C. 7511(a)
§ 181(aX(1), 42 U.S.C. 7511(aX1)
181000), 42 U.S.C. 7511(aX3)
§ 181(aX(5), 42 U.S.C. 7511(aX5)
$§ 181-191, 42 U.S.C. 7511-7514
$§ 181-192, 42 U.S.C. 7511-7514
§ 302(h), 42 U.S.C. 7602(h)
§ 307(b), 42 U.S.C. 7607(b)
§ 307(b)(1), 42 U.S.C. 7807 )
§ 307(d), 42 U.S.C. 7607(d)
§ 307(d\(3), 42 U.S. C. 7607(d\3)
§ 307(d(6\X(b), 42 U.S.C. 780,
807d) 9), 42 U.S.C. 7607(d (9)
Miscellaneous:
61 Fed. Reg. (1996):
p. 66,716
pp. 65, 719-65, 721
pp. 65, 727-66, 728
Miscellaneous—Continued:
62 Fed. Reg. (1997):
pp. 38,579-38,655
5
5
85
S
2
88
: :
3 &
— — —
KK Wk 860.
pp. 38, 884-38, 885 8, 21, 27
H. R. Rep. No. 294, 95th Cong., Ist Sess. (1977) * 15
S. Rep. No. 1196, 91st Cong., 2d Sess. (1970) 15
1 Staff of the Senate Comm. on Pub. Works, 93d Cong.,
2d Sess., A Legislative History of the Clean Air
Act Amendments of 1970 (Comm. Print 1974) 15
In the Supreme Court of the Anited States
No.
CAROL M. BROWNER, ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY, ET AL.,
PETITIONERS
vz.
AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf of Carol M. Browner,
Administrator of the Environmental Protection Agency,
et al. (EPA), respectfully petitions for a writ of certio-
rari to review the judgments of the United States
Court of Appeals for the District of Columbia Circuit in
these two sets of identically-captioned consolidated
cases.
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-69a)
is reported at 175 F.3d 1027. The opinion on petitions
for rehearing and dissenting statements on denial of
rehearing en banc (Pet. App. 70a-102a) are reported at
195 F. 3d 4.
JURISDICTION
The decision of the court of appeals was entered on
May 14, 1999. Petitions for rehearing were granted in
part and denied in part on October 29, 1999. The juris-
diction of this Court is invoked under 28 U.S.C. 1254(1).
(1)
2
CONSTITUTIONAL, STATUTORY AND REGULATORY
PROVISIONS INVOLVED
Article 1 of the United States Constitution states in
pertinent part as follows:
All legislative Powers herein granted shall be
vested in a Congress of the United States.
The relevant sections of the Clean Air Act, 42 U.S.C.
7401 et seq., are set forth in the Appendix at Pet. App.
105a-126a.
The EPA rules at issue in this case are set forth in
the Appendix at Pet. App. 102a-104a.
STATEMENT
Respondents American Trucking Associations, Inc.,
et al. (ATA), petitioned under Section 307(b) of the
Clean Air Act (CAA), 42 U.S.C. 7607(b), for review of
two final EPA rules establishing revised National Am-
bient Air Quality Standards (NAAQS) for particulate
matter and ozone under Section 109 of the CAA, 42
U.S.C. 7409. On May 14, 1999, the court of appeals is-
sued a single opinion for the two sets of consolidated
cases. No. 97-1440 (particulate matter); No. 97-1441
(ozone). A divided panel found that Section 109 of the
CAA, 42 U.S.C. 7409, as interpreted by EPA in setting
the ozone and particulate matter NAAQS, effected an
unconstitutional delegation of legislative authority.
The court remanded both rules with instructions that
EPA should articulate an “intelligible principle” for
determining the degree of residual risk to public health
permissible in setting revised NAAQS. Although EPA
had taken no final agency action to implement the
revised ozone NAAQS, the court also issued an opinion,
later modified, on the scope of EPA’s implementation
authority.
3
1. The CAA directs EPA to promulgate NAAQS,
which establish the maximum permissible levels, in the
outside air, of a limited number of pervasive pollutants
that have adverse effects on public health and welfare.
CAA § 109, 42 U.S.C. 7409. Section 109 directs EPA to
promulgate “primary” NAAQS to protect human health
and “secondary” NAAQS to protect “public welfare.”
See CAA § 109(b), 42 U.S.C. 7409(b). See also CAA
§ 302(h), 42 U.S.C. 7602(h) (defining welfare interests).
EPA has promulgated NAAQS for six pollutants: sulfur
dioxide, carbon monoxide, nitrogen oxide, lead, ozone,
and particulate matter M.
The CAA directs EPA to establish NAAQS at spe-
cific levels. Primary NAAQS must be set at levels that,
“in the judgment of the [EPA] Administrator, * * *
and allowing an adequate margin of safety, are requi-
site to protect the public health.” CAA § 109(b)(1), 42
U.S.C. 7409(b)(1). Secondary NAAQS must be set at
levels that, “in the judgment of the Administrator,” are
“requisite to protect the public welfare from any known
or anticipated adverse effects.” CAA § 109(b)(1), 42
U.S.C. 7409(b)(1). In making those judgments, EPA
must develop and rely on “air quality criteria” that
“accurately reflect the latest scientific knowledge useful
in indicating the kind and extent of all identifiable
effects on public health or welfare which may be
expected from the presence of [a] pollutant in the ambi-
ent air.” CAA § 108(a)(2), 42 U.S.C. 7408(a)(2). EPA
must review the air quality criteria and NAAQS every
1 PM embraces airborne particles of varying size and composi-
tion. See NAAQS for Particulate Matter, 62 Fed. Reg. 38,652,
38,653 (1997). PMio denotes inhalable particulate matter up to ap-
proximately 10 micrometers in diameter, while PM.; denotes PM
up to approximately 2.5 micrometers in diameter. See 62 Fed.
Reg. at 38,654 n.1, 38,666-38,667.
4
five years and revise them as “appropriate” in accor-
dance with Sections 108 and 109. 42 U.S.C. 7409(d)(1).
The CAA sets out an implementation process, resting
on principles of federal-state cooperation, to ensure that
the air throughout the Nation “attains” the NAAQS.
Within three years of promulgating a new or revised
NAAQS, EPA must “designate” prescribed areas of the
country as either attainment areas or nonattainment
areas for each NAAQS pollutant depending on whether
the NAAQS has been met. CAA § 107(d)(1), 42 U.S.C.
7407(d)(1). Once EPA designates an area as nonattain-
ment for a NAAQS, EPA must establish the date by
which the nonattainment area must attain the NAAQS
in question (the attainment date). See generally CAA
§ 172(a), 42 U.S.C. 7502(a). The States are generally
responsible for determining what measures are neces-
sary within their borders to achieve and maintain the
NAAQS. The CAA allows each State to develop, for
approval by EPA, a State Implementation Plan (SIP)
that sets forth pollution control measures necessary,
among other things, for nonattainment areas within the
State to attain all NAAQS by the applicable attainment
dates. See CAA §§ 110, 172(c), 42 U.S.C. 7410, 7502(c).
Congress has amended the CAA on several occa-
sions, including an extensive revision in 1990. See Pub.
L. No. 101-549, 104 Stat. 2399 (the 1990 Amendments).
The 1990 Amendments recognized, among other things,
that many areas of the country had failed to attain the
existing NAAQS, including the primary ozone NAAQS,
set in 1979, of 0.12 parts per million (ppm) averaged
over one hour (the one-hour standard). The 1990
Amendments revised the CAA’s implementation pro-
cess in certain respects, creating a new procedure for
classifying nonattainment areas based upon pertinent
factors (such as the severity of the nonattainment prob-
lem) and revising the method for setting attainment
—
5
dates. See generally CAA § 172, 42 U.S.C. 7502. The
1990 Amendments also imposed specific implementa-
tion measures for areas designated nonattainment for
various pollutants. See CAA §§ 181-192, 42 U.S.C.
7511-7514a In the case of ozone, the 1990 Amendments
established mandatory classifications and attainment
dates for the primary one-hour ozone standard. See
CAA § 181(a)(1), 42 U.S.C. 7511(a)(1).
2. In July 1997, after extensive rulemaking proceed-
ings, EPA issued revised NAAQS for particulate
matter and ozone in light of new scientific knowledge
about the adverse health effects of those pollutants.
See NAAQS for Particulate Matter, 62 Fed. Reg. 38,652
(1997); NAAQS for Ozone, 62 Fed. Reg. at 38,856.”
a. EPA found that the 1987 NAAQS for particulate
matter, which employed the indicator PM,, to regulate
all inhalable particles (see note 1, supra), were inade-
quate to protect public health. EPA based its finding
on more than 60 epidemiological studies showing seri-
ous adverse health effects at particulate matter con-
centrations below the 1987 NAAQS. Those health
effects included premature death, increased hospital
admissions, and respiratory illnesses, particularly
among the elderly, people with respiratory and cardio-
vascular diseases, asthmatics, and children. EPA found
that the health effects observed at concentrations
below the 1987 NAAQS were likely associated with
“fine” particles PM.) and therefore revised the 1987
NAAQS to establish new PM,, standards. EPA also
revised the PM,, standards to continue to address other
health effects from larger (coarse) particles. See 62
Fed. Reg. at 38-579-38,655.
2 Copies of those Federal Register notices have been lodged
with the Clerk of the Court.
6
b. Similarly, EPA found that the 1979 one-hour
ozone NAAQS was inadequate to protect public health
based on clinical studies and other evidence linking
prolonged ozone exposures (from six to eight hours) to
numerous adverse health effects, including decreases in
lung function, coughs and chest pain, potential aggrava-
tion of asthma, lung inflammation, increased suscep-
tibility to respiratory infection, increased doctor and
emergency room visits and hospitalizations, and possi-
ble permanent lung damage from repeated exposures.
Children and asthmatics are particularly at risk. EPA
therefore promulgated a more stringent ozone NAAQS
of 0.08 ppm, averaged over an eight-hour period (the
eight-hour standard). See 62 Fed. Reg. at 38,859-
38,878.
3. Numerous industry groups, a public interest
group, and several States and individuals challenged
the revised particulate matter and ozone NAAQS. The
court of appeals rejected many of the challenges, but
nevertheless remanded the revised NAAQS to EPA
and instructed the agency to “develop a constitutional
construction of the act.” Pet. App. 4a, 5a. Relying on a
theory that was not extensively briefed by the parties,
the court found that EPA’s interpretation of Section
109 of the CAA “effects an unconstitutional delegation
of legislative power.” Id. at 4a. The majority reasoned
that, because there is no scientifically determinable
“threshold” below which adverse health effects from
ozone can be ruled out, and because there “likely” is no
similar threshold for PM, EPA must provide a “deter-
minate criterion for drawing lines” for any “non-zero”
standard. Id. at 5a-6a. According to the majority,
EPA’s interpretation of the CAA leaves it “free to pick
any point between zero and a hair below * * *
London’s Killer Fog,” a notorious 1952 incident in which
approximately 4000 deaths over four days were attrib-
7
uted to air pollution. Jd. at 18a. Judge Tatel dissented
from that portion of the opinion, emphasizing that the
majority “ignore[d] the last half-century of Supreme
Court nondelegation jurisprudence” upholding numer-
ous congressional enactments containing fewer guiding
principles than Section 109. Jd. at 59a.
In the ozone case, the court of appeals rejected the
industry petitioners’ argument that Congress’s 1990
Amendments to the CAA, which established mandatory
classifications and attainment dates for the primary
one-hour ozone standard then in effect, see CAA § 181,
42 U.S.C. 7511, precluded EPA from revising the ozone
NAAQS. Pet. App. 34a-37a. That ruling resolved the
issue before the court. The court of appeals neverthe-
less went on to direct what EPA may and may not do
when it proceeds—in the future—to implement the
ozone NAAQS. The court ruled that EPA cannot set
nonattainment classifications and attainment dates for
the revised ozone NAAQS through Section 172 (42
U.S.C. 7502), but must instead employ the classifica-
tions and attainment dates set out in Section 181(a) (42
U.S.C. 7511(a)), and this precluded EPA from imple-
enting a more protective ozone NAAQS. Pet. App. 34a,
37a-44a.*
4. EPA and other parties filed petitions for re-
hearing and suggestions for rehearing en banc. The
panel denied EPA’s petition for rehearing on the non-
issue. Pet App. 72a. It expressly rejected
EPA’s view that the relevant provisions of the CAA,
8 The court of appeals resolved some, but not all, of the other
challenges to EPA’s rules. See Pet. App. 4a-5a. The court con-
cluded that “[tJhe remaining issues cannot be resolved until such
time as EPA may develop a constitutional construction of the act
(and, if appropriate, modify the disputed NAAQS in accordance
with that construction).” Id. at 5a.
8
including Section 109(b)(1)’s direction that NAAQS
must be based on air quality criteria and “set at levels
requisite to protect the public health,” 42 U.S.C.
7409(b)(1), set out intelligible principles that limit the
agency’s discretion. Pet. App. 72a-89a. Judge Tatel
dissented. Id. at 89a.
In the ozone case, the pane’ g anted rehearing in
part, to modify its opinion regarding EPA’s authority to
implement the revised NAAQS. Pet. App. 7la-72a, 76a-
82a. The panel rejected EPA’s argument that, because
EPA had yet to take final action implementing the
revised NAAQS, the court lacked jurisdiction to
consider which provision of the CAA would govern
EPA’s implementation, including the specification of
classifications and attainment dates. Jd. at 77a-79a.
The court found that EPA’s statements on that issue in
the regulatory preamble accompanying the revised
ozone NAAQS, made in response to industry comments
challenging EPA’s authority to promulgate that
standard, see 62 Fed. Reg. at 38,884-38,885, constituted
final agency action on the question of implementation
that was ripe for judicial review. Pet. App. 77a-79a. On
the merits, the panel modified its opinion to state that
“EPA can enforce a revised primary ozone NAAQS
only in conformity with [Section 181).” Id. at Sla.
Judge Tatel wrote separately because he
with the panel’s reasoning. Id. at 83a-89a. He found
the statute ambiguous and would have deferred to
EPA’s interpretation. Id. at 84a. Judge Tatel
nevertheless concurred in the judgment because, in his
view, the modified decision allows EPA to implement
the revised ozone NAAQS in a nonattainment area once
the area has attained the one-hour standard in
accordance with Section 181. Jd. at 89a.
The court also denied EPA’s suggestion for rehearing
en banc, with five of the court’s eleven active judges
(Chief Judge Edwards, and Judges Silberman, Rogers,
Tatel, and Garland) voting in favor of rehearing en
banc, and four (Judges Williams, Ginsburg, Sentelle,
and Randolph) voting against it. Pet. App. 90a-92a.
Judge Silberman and Judge Tatel each wrote a state-
ment dissenting from the denial of rehearing en banc on
the nondelegation issue. Id. at 92a-96a (Silberman, J.,
dissenting); id. at 97a-99a (Tatel, J., dissenting). Chief
Judge Edwards and Judge Garland joined in Judge
Tatel’s statement. Id. at 97a.
The court of appeals has rejected EPA’s revision of
the particulate matter and ozone NAAQS, ruling that
Section 109 of the CAA as interpreted by EPA effects
an unconstitutional delegation of legislative power. The
court’s decision presents an issue of immense practical
importance to the health of the American public. In
addition, the court’s ruling raises issues of extraordi-
nary governmental concern. First, the court’s decision
represents a radical departure from settled law re-
specting the nondelegation doctrine. The court’s ruling
conflicts with this Court’s decisions upholding congres-
sional enactments containing far broader grants of
authority than that contained in Section 109 and, as a
consequence, raises questions respecting the constitu-
tionality of a broad range of federal statutes requiring
agencies to draw lines based on scientific judgments.
Second, the court’s approach would unjustifiably ex-
pand the role of the courts in reviewing agency action.
In this instance, the court has directed EPA to revisit
and artificially narrow the discretion that EPA has
10
previously been entitled to exercise under Section 109
of the CAA.
The court's decision respecting EPA's authority to
implement a revised ozone NAAQS also warrants re-
view. The court’s ruling is not only important from a
public health perspective, but also raises a core juris-
dictional question of far-reaching significance. The
court adopted a test for finality that is inconsistent with
the test applied by this Court and other courts of
appeals. Furthermore, by asserting jurisdiction before
the agency action is ripe for review, the court of appeals
has deprived EPA of the opportunity to develop fully
its interpretation and to reconcile any tensions that
may arise in the future respecting implementation of
the revised NAAQS.
The court’s premature review of EPA’s implementa-
tion authority has also resulted in an erroneous
resolution of the merits, which additionally warrants
this Court’s review. The court’s mistaken interpreta-
tion would inappropriately force EPA to delay pro-
tecting the public from the very health consequences
As Judge Tatel observed, It he Act has been parsed by [the
District of Columbia Circuit) no fewer than ten times in published
opinions delineating EPA authority in the NAAQS-setting pro-
cess.” Pet. App. 59a. See, e. g., American Lung Ass'n v. EPA, 134
F.3d 388, 389, 392 (D.C. Cir. 1998) (sulfur dioxide), cert. denied, 120
S. Ct. 58 (1999); Natural Resources Defense Council, Inc. v. EPA,
902 F.2d 962, 969 (1990) (particulate matter), opinion vacated in
part, 921 F.2d 326 (D.C. Cir.), cert. denied, 498 U.S. 1082 (1991);
American Petroleum Inst. v. Costle, 665 F 2d 1176, 1185 (D.C. Cir.
1981) (ozone), cert. denied, 455 U.S. 1034 (1982); Lead Indus. Ass'n
v. EPA, 647 F.2d 1130, 1161 (D.C. Cir.) (lead), cert. denied, 449
U.S. 1042 (1980). The majority acknowledged that those decisions
recognized EPA’s broad discretion to make policy judgments in
setting NAAQS, but summarily discounted their relevance on the
ground that “none of those panels addressed the claim of undue
delegation that we face here.” Pet. App. 12a.
a
11
that warrant a NAAQS revision in the first place, until
areas attain an air quality standard that EPA has
concluded is inadequate to protect public health.
1. The court of appeals’ rejection of EPA’s revised
NAAQS for particulate matter and ozone presents an
important federal question with profound implications
for the health of the American public and the effective-
ness of the CAA. Because the NAAQS are the founda-
tion of key CAA programs, the current uncertainty
regarding the validity of the revised PM,; and ozone
NAAQS will disrupt federal and state programs to
achieve and maintain air quality. Based on the latest
scientific knowledge, EPA has determined that the pre-
existing PM and ozone standards are inadequate to
protect public health. The Clean Air Scientific Advi-
sory Committee (CASAC)—a body created by Con-
gress to render independent scientific advice on
NAAQS decisions, 42 U.S.C. 7409(d)(2)(B)—has con-
curred in EPA’s scientific findings in that regard. The
court of appeals’ decision frustrates EPA’s efforts to
revise the PM and ozone NAAQS and thus unnecessar-
ily prolongs the exposure of millions of Americans to
unhealthy pollutant levels. See, e.g., Pet. App. 56a
(finding that evidence in the rulemaking record “amply
justifies establishment of new fine particle standards”).
a. The court of appeals’ decision is a striking depar-
ture from this Court’s nondelegation jurisprudence.
Section 109’s grant of authority is “far more specific
than the sweeping statutory delegations consistently
upheld by the Supreme Court for more than sixty
years.” Pet. App. 97a (Tatel, J., dissenting from denial
of rehearing en banc); see also id. at 93a (Silberman, J.,
dissenting from denial of rehearing en banc) (Section
12
109 does not “raise a serious constitutional problem”).
The court has overlooked this Court’s instruction that
the starting point for analysis of a nondelegation claim
should be the statute’s language, purpose, history, and
context. American Power & Light Co. v. SEC, 329 U.S.
90, 104 (1946). The majority brushed aside the CAA’s
terms in two conclusory sentences, holding that the
statute, as interpreted by EPA, is unconstitutional
because it does not provide a “determinate criterion for
drawing lines.” Pet. App. 6a.’
This Court has repeatedly held that Congress does
not violate the Constitution “merely because it legis-
lates in broad terms, leaving a certain degree of discre-
tion to executive or judicial actors.” Towby v. United
States, 500 U.S. 160, 165 (1991); see, e.g., Yakus, 321
5 Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 218-219
(1989), cites pertinent examples: Lichter v. United States, 334 U.S.
742, 778-786 (1948) (recovery of “excessive profits” on military con-
tracts); American Power & Light Co., 329 U.S. at 104 (prevention
of “unfair{] or inequitable[]” distribution of security holder voting
power); Yakus v. United States, 321 U.S. 414, 420 (1944) (setting of
“fair and equitable” commodities prices); FPC v. Hope Natural
Gas Co., 320 U.S. 591, 600-601 (1944) (determination of “just and
reasonable rate”); NBC v. United States, 319 U.S. 190, 225-226
(1943) (regulation of broadcast licensing in “the public interest”).
6 The threshold question in the Court’s nondelegation
cases, including A.L.A. Schechter Poultry Corp. v. United States,
295 U.S. 495 (1935), has been whether Congress has authorized the
agency to exercise nondelegable legislative functions. Id. at 530
(“[W]e look to the statute to see whether Congress has over-
stepped these limitations * * [or] has itself established the
standards of legal obligation, thus performing its essential legisla-
tive function.”).
7 See Pet. App. 5a (“EPA appears to have articulated no ‘intel-
ligible principle’ to channel its application of [public health factors);
nor is one apparent from the statute.”); id. at 14a (“Where (as here)
statutory language and an existing agency interpretation involve
an unconstitutional delegation of power * * *.”).
13
U.S. at 425 (Congress may authorize agencies to engage
in activities that “call for the exercise of judgment, and
for the formulation of subsidiary administrative policy
within the prescribed statutory framework”). It is
“‘constitutionally sufficient if Congress clearly deline-
ates the general policy, the public agency which is to
apply it, and the boundaries of this delegated author-
ity.” Mistretta v. United States, 488 U.S. 361, 372-373
(1989) (quoting Ame icun Power & Light Co., 329 U.S.
at 105); Skinner, 490 U.S. at 218-219.
Had the court fully considered the terms of the stat-
ute, its history, purpose, and context, the court would
have found that Section 109 amply satisfies that test.
Section 109(b)(1) of the Act requires that primary
NAAQS be set at levels “requisite to protect the public
health” with an “adequate margin of safety.” 42 U.S.C.
7409(b)(1). To warrant the setting of a NAAQS, a
pollutant must “reasonably be anticipated to endanger
public health or welfare” and be emitted from “numer-
ous or diverse * * sources.” CAA § 108(a)(1)(A)-(B),
42 U.S.C. 7408(a)(1)(A)-(B). Each NAAQS must be
based on “air quality criteria” that reflect “the latest
scientific knowledge,” 42 U.S.C. 7408(a)(2), including
information on “variable factors” that “may alter the
effects on public health,” as well as interactions with
other pollutants “to produce an adverse effect on public
health or welfare.” 42 U.S.C. 7408(a)(2)(A)-(B). Fur-
ther, the CAA establishes and prescribes the composi-
tion of CASAC and requires EPA to develop the “crite-
ria” with extensive CASAC review. CAA § 109(d)(2),
42 U.S.C. 7409(d)(2).°
8 The CAA’s directives plainly require a high degree of protec-
tion and cannot reasonably be construed, as the court claimed, to
allow EPA such broad discretion as to authorize pollutant levels
ranging from zero to “a hair below” the infamous London Killer
14
Moreover, Congress has prescribed rulemaking pro-
cedures through Section 307(d) of the CAA that ensure
extensive public participation and the availability of
arbitrary-and-capricious review for EPA’s NAAQS
decisions. See 42 U.S.C. 7607(d). EPA must discuss
the data, methodology, and major legal and policy inter-
pretations underlying proposed NAAQS and explain
any significant departure from CASAC’s advice, 42
U.S.C. 7607(d)(3); respond to significant comments, 42
U.S.C. 7607(d)(6)(b); and provide a reasoned explana-
tion adequate to withstand judicial review. 42 U.S.C.
7607(d)(9). The availability of such review weighs
strongly in favor of the constitutionality of Section 109’s
grant of agency authority. See American Power &
Light Co., 329 U.S. at 105 (“(pjrivate rights are pro-
tected by access to the courts to test the application of
the policy in the light of the[] legislative declarations”);
Touby, 500 U.S. at 170 (Marshall, J., concurring); see
also Schechter Poultry, 295 U.S. at 532-533 (distinguish-
ing cases upholding broad legislative authorizations be-
= e. g., statutes provided notice and hearing proce-
ures).
Fog episode. Pet. App. lla. For example, EPA found, based on
new evidence in the 1997 rulemaking, that the 1987 NAAQS for
particulate matter were inadequate to protect public health. That
finding effectively dictated that the upper bound for the Adminis-
trator’s consideration for revised standards had to be at least as
protective as the 1987 NAAQS, which were set far below “Killer
Fog” levels. See, e. g., 62 Fed. Reg. at 38,656-38,666, 38,674-38,675.
EPA made a similar finding regarding the inadequacy of the exist-
ing ozone NAAQS. 61 Fed. Reg. 65,716, 65,719-65,721 (1996). In
each instance, EPA established the lower limit based on an exten-
sive examination of the best available scientific evidence of ad-
verse health effects, see 62 Fed. Reg. at 38,674-38,677; 61 Fed.
Reg. at 65,727-65,728, and the range of alternatives considered was
far narrower than the range suggested by the court. See also Pet.
App. 66a (Tatel, J., dissenting).
15
The CAA’s legislative history, which the majority
also failed to consider, provides further guidance to the
agency. That history indicates that the health effects
justifying a NAAQS must be “adverse,” Lead Indus.
Ass 'n, 647 F.2d at 1152 (citing S. Rep. No. 1196, 91st
Cong., 2d Sess. 10 (1970)), and therefore must be medi-
cally significant and not merely detectable. To provide
an “adequate margin of safety,” standards must be
“preventative or precautionary,” reflecting an emphasis
on the “predominant value of protection of public
health.” Ibid. (quoting H.R. Rep. No. 294, 95th Cong.,
Ist Sess. 49 (1977)); id. at 1155 (EPA must “err on the
side of caution”). EPA cannot consider the economic or
technological feasibility of attaining NAAQS. Id. at
1148-1151. Finally, public health is distinct from indi-
vidual health; NAAQS must protect “sensitive” popula-
tions, such as asthmatics, id. at 1152, but not the most
sensitive individuals within those populations. See S.
Rep. No. 1196, supra, at 10 (EPA must consider effects
by reference to “a representative sample of persons
comprising the sensitive group rather than to a single
person in such a group.”), reprinted in 1 Staff of the
Senate Comm. on Pub. Works, 93d Cong., 2d Sess., A
Legislative History of the Clean Air Act Amendments
of 1970, at 410 (Comm. Print 1974).
Drawing on the legislative guidance, EPA has developed de-
cisional criteria” that it considers in the course of developing
NAAQS. The public health factors considered include the nature
and severity of health effects, the types of health evidence, the
kind and degree of uncertainties involved, and the size and nature
of the sensitive populations at risk. The District of Columbia Cir-
cuit first approved EPA’s use of those factors almost 20 years ago,
Lead Indus., 647 F.2d at 1161; EPA has since employed them in
numerous NAAQS rulemakings; and even the panel majority
found them reasonable. Pet. App. 5a-7a.
16
This Court’s decisions on the nondelegation doctrine
reflect “a practical understanding that in our increas-
ingly complex society, replete with ever changing and
more technical problems, Congress simply cannot do its
job absent an ability to delegate power under broad
general directives.” Mistretta, 488 U.S. at 372. The
court of appeals lost sight of that crucial practical
understanding and, in doing so, opened to potential
constitutional attack not only Section 109 of the CAA,
but also numerous other federal statutes containing
similarly broad grants of authority to administrative
agencies.
b. The court of appeals’ decision departs from estab-
lished law by transforming the nondelegation doctrine
from a means for preserving the separation of powers
by ensuring that Congress has not abdicated, by
delegating to another Branch or to private parties, its
power to “make * * * Laws,” U.S. Const. Art. I, § 8,
Cl. 18, into a basis for otherwise unwarranted judicial
supervision of the exercise of administrative discretion.
See Pet. App. 14a. The court directed EPA to “de-
velop[{] determinate, binding standards for itself” to
reduce the likelihood that EPA would “exercise the
delegated authority arbitrarily” and to “enhance the
likelihood that meaningful judicial review will prove
feasible.” Ibid. Neither Chevron U.S.A. Inc. v. Natu-
ral Resources Defense Council, Inc., 467 U.S. 837
(1984), nor any other decision of this Court, justifies
that novel utilization of the nondelegation doctrine. See
Pet. App. 92a (Silberman, J., dissenting from the denial
of rehearing en banc) (“I do not think that [the non-
delegation] doctrine can be employed to force an agency
to narrow a broad legislative delegation from Con-
gress.”).
As a practical matter, the court of appeals’ decision
would initiate a fundamental change in the nature of
17
judicial review of agency standard-setting. The court
concluded that the nondelegation doctrine requires
Congress, or agencies interpreting the intent of Con-
gress, to delineate a “determinate criterion for drawing
lines” or, by implication, a quantitative rule for deciding
the precise degree of protection required for a given
health or safety standard. See Pet. App. 6a. In effect,
the panel demanded that either the CAA or EPA
supply a principle that would allow a reviewing court to
conclude that EPA reached what is, in the court’s view,
exactly the “right” result. That approach would effec-
tively supplant the concept that courts review agency
determinations based on an arbitrary and capricious
standard. As Judge Silberman recognized, it would
“implicitly assert{] a greater role for a reviewing court
than is justified.” Id. at 96a. See also note 4, supra.
The court’s direction to EPA to develop “determi-
nate, binding standards” to govern the agency’s
NAAQS decisions (Pet. App. 14a) is inconsistent with
this Court’s instruction in American Power & Light
Co., 329 U.S. at 106:
Nor is there any constitutional requirement that the
legislative standards be translated by [an agency]
into formal and detailed rules of thumb prior to their
application to a particular case. If that agency
wishes to proceed by the more flexible case-by-case
method, the Constitution offers no obstacle.
Cf. Vermont Yankee Nuclear Power Co. v. Natural
Resources Defense Council, Inc., 435 U.S. 519, 543-545
(1978). The court’s rationale for its approach—to make
arbitrary agency action less likely and to enhance
meaningful judicial review (Pet. App. 14a)—is ade-
quately addressed through the arbitrary and capricious
standard for judicial review of agency action, including
review to determine whether the agency has ade-
18
quately explained any departures from past practices
or decisions. See id. at 68a (Tatel, J., dissenting) (those
issues “relate to whether the NAAQS are arbitrary and
capricious” and “ha[ve] nothing to do with our inquiry
under the nondelegation doctrine”).””
Neither the Constitution, the CAA, nor any prior ju-
dicial decision requires EPA to supply the “determinate
criterion for drawing lines,” Pet. App. 6a, that would
produce the precision the majority demanded here. See
also id. at 10a (standard prescribing “how much uncer-
tainty is too much”). Instead, EPA must consider the
factors that the CAA prescribes and provide a reasoned
explanation, based on scientific evidence, for its deci-
sion. As this Court explained in reviewing rates set by
the Federal Power Commission under a statute requir-
ing rates to be “just and reasonable”:
[Tyhere is no single cost-recovering rate, but a zone
of reasonableness: “Statutory reasonableness is an
abstract quality represented by an area rather than
a pinpoint. It allows a substantial spread between
what is unreasonable because too low and what is
unreasonable because too high.”
FPC v. Conway Corp., 426 U.S. 271, 278 (1976) (quoting
Montana-Dakota Util. Co. v. Northwestern Pub. Serv.
10 The court’s extraordinary, policy-based suggestion that EPA
could employ a quantitative “generic unit of harm” based on
Oregon’s approach to Medicaid (Pet. App. 16a-17a & n.5) would not
solve the constitutional problem the court perceived; EPA would
still have to draw lines. Even if we assume that such a quantita-
tive approach were possible, the policy judgments necessary to
establish a “generic unit of harm” and to determine how many such
units are permissible under the CAA would be similar to those
EPA has traditionally made in its NAAQS proceedings; these
judgments would merely be made under a different framework
that would likely be more confusing and difficult for the public and
a reviewing court to evaluate.
19
Co., 341 U.S. 246, 251 (1951)). That is also the approach
the District of Columbia Circuit has followed in re-
viewing prior decisions under Section 109, such as the
1987 particulate matter standard. See Natural Re-
sources Defense Council, Inc. v. EPA, 902 F.2d 962, 972
(D.C. Cir. 1990) (CAA does not require EPA to identify
“the clear and sole appropriate standard,” but rather a
standard that is reasonable in light of the record evi-
dence).
The court of appeals’ decision marks a profound
change in the ground rules that shape not only EPA’s
air quality and other programs, but also those of other
federal agencies. Many, if not most, of the rules and
decisions under those programs are reviewed in the
District of Columbia Circuit. This Court should review
the court of appeals’ decision and determine, before
EPA and other agencies refocus the analyses that they
have traditionally employed under the arbitrary and
capricious standard, whether those new ground rules
are appropriate.”
2. The court of appeals also significantly erred in
assuming jurisdiction to decide the scope of EPA’s
1 The court of appeals’ decision cannot give rise to a square
conflict among the courts of appeals, because Section 307(b) of the
CAA vests the District of Columbia Circuit with exclusive juris-
diction to review EPA’s decisions to promulgate and revise the
NAAQS. See 42 U.S.C. 7607(b). Nevertheless, as Judge Tatel
noted, the majority’s decision is inconsistent with the reasoning of
a First Circuit decision that addressed a nondelegation challenge
in the course of reviewing a CAA implementation issue (a trans-
portation plan aimed at achieving a NAAQS). See Pet. App. 60a-
61a. See also pp. 19-20, infra (describing the CAA provisions that
direct implementation challenges to the regional courts of appeals).
The First Circuit stated, in that context, that Section 109’s “requi-
site to protect the public health” standard is not an unconstitu-
tional and excessive delegation of legislative authority. South
Terminal Corp. v. EPA, 504 F.2d 646, 677 (1974).
20
authority to implement and enforce the revised ozone
NAAQS. Pet. App. 37a-44a. Section 307(b)(1) of the
CAA authorizes the District of Columbia Circuit to
review “action of the Administrator in promulgating
any [NAAQS]” and other “nationally applicable regula-
tions promulgated, or final action taken, by the Ad-
ministrator.” 42 U.S.C. 7607(b)(1). Section 307(b)(1)
further states, however, that the regional courts of ap-
peals shall have authority to review “the Administra-
tor’s action in approving or promulgating any imple-
mentation plan under [Section 110 of the Act].” 42
U.S.C. 7607(b)(1). The CAA makes clear, by expressly
deferring challenges to EPA’s classification decisions
until EPA takes final action on a State’s submission (or
failure to submit) a SIP, that the question of how to
classify areas for purposes of setting attainment dates
for the revised ozone NAAQS is reviewable only as
part of the post-NAAQS-promulgation process of im-
plementation planning. See CAA §§ 172(a)(1)(B),
181(a)(3), 42 U.S.C. 7502(a)(1)(B), 7511(a)(8).
Consistent with the procedural steps set out in the
CAA, EPA did not take final action in the 1997 ozone
rulemaking to implement or enforce the revised ozone
NAAQS. EPA has not, for example, designated areas
as attainment or nonattainment for the eight-hour stan-
dard under Section 107(d), and it has neither classified
any nonattainment areas nor established attainment
dates under either Section 172(a) or Section 181(a)(1).
See 42 U.S.C. 7502(a), 7511(a)(1). The issue of
implementation arose solely because ATA argued that
Congress, by establishing a scheme in Section 181(a)(1)
for implementing the then-current one-hour ozone
standard, implicitly prohibited EPA from ever
promulgating any revised ozone NAAQS. EPA re-
sponded to that argument in the rulemaking preamble
(and later in its court of appeals brief) by explaining, in
21
the course of showing why the Section 181(a) scheme
does not prevent EPA from promulgating a revised
NAAQS, how it would implement such a standard. See
62 Fed. Reg. at 38,884-38,885. The only issue before the
court of appeals, therefore, was whether the statutory
provisions at issue precluded EPA from promulgating
the revised standard. Once the court answered this
question in the negative, Pet. App. 34a-37a, its task was
done. It should not have gone on to consider prema-
turely whether and how EPA could implement the
revised NAAQS.
The court of appeals’ decision to address prematurely
the question of NAAQS implementation has important
consequences that warrant this Court’s review. The
court of appeals has departed from the requirement
that the reviewing court restrict its inquiry to the
agency’s final actions, and it has adopted a test for
finality that is inconsistent with the test applied by this
Court and other courts of appeals. The court has also
violated similarly well-established ripeness principles
and deprived the agency charged with implementing a
complex statute of the opportunity fully to develop its
interpretation and resolve any tensions within the
statutory scheme.
a. The panel erroneously concluded that the views
that EPA had expressed in the rulemaking preamble
regarding its implementation authority constitute final
action. Pet. App. 77a-78a. In Bennett v. Spear, 520
U.S. 154 (1997), this Court explained that
two conditions must be satisfied for agency action to
be “final”: First, the action must mark the “consum-
mation” of the agency’s decisionmaking process
it must not be of a merely tentative or
interlocutory nature. And second, the action must
be one by which “rights or obligations have been
determined,” or from which “legal consequences will
flow” * * .
Id. at 177-178 (citations omitted). In this case, the court
of appeals determined, notwithstanding Bennett, that
preamble statements that merely express EPA’s future
intentions are final agency actions. The court effec-
tively reconfigured each prong of this Court’s test in a
way that would significantly broaden the domain of
final agency actions.
The court of appeals ruled that EPA’s statements
respecting NAAQS implementation satisfied the “con-
summation” prong because the court concluded that
EPA’s description of how it would implement the rule
would likely not change. See Pet. App. 77a-78a. Under
Bennett, however, the proper inquiry is not merely
whether the agency has any present intention to alter
its position. Rather, the question is whether the agency
has completed its decisionmaking process under the
governing statute for the specific agency action at
issue. Here, EPA has not designated nonattainment
areas, classified those areas, or set attainment dates in
accordance with the CAA’s statutorily prescribed deci-
sionmaking process. See, e.g., CAA $§ 107(d), 172(a), 42
U.S.C. 7407(d), 7502(a). The court of appeals’ approach
of focusing on the certainty of EPA’s preamble state-
ments, without considering whether the statements
consummate the statutory decisionmaking process for
implementing the ozone NAAQS, distorts the Bennett
test and conflicts with the finality jurisprudence of
other courts of appeals.”
2 For example, in Dow Chemical Co. v. EPA, 832 F 2d 319 (Sth
Cir. 1987), the court explained that “EPA’s construction of [the
regulatory provision) is ‘final’ only in the sense that no one at the
agency currently plans to revise it. The same could be said of
countless other instances of legal interpretation. Id. at 323-324.
The court of appeals’ decision also distorts the second
Bennett factor. The court concluded that EPA’s pre-
amble statements respecting the agency’s future imple-
mentation plans constitute final agency action even
though no legal consequences flow from EPA’s expres-
sion of its views regarding the statutory provisions that
govern implementation of a revised ozone NAAQS. See
Pet. App. 78a. ATA will not be affected by EPA’s
views on implementation of the revised ozone NAAQS
until the agency takes actual steps to implement the
NAAQS by designating and classifying nonattainment
areas and setting attainment dates. ATA will be able to
obtain judicial review of EPA’s judgments on those
the statutorily prescribed mechanism
(see pp. 19-20, supra)—once EPA takes such final
binding action on those specific matters. The court of
appeals erred in overlooking these decisive considera-
tions and treating the legal effects of NAAQS
Instead, to satisfy the definitiveness requirement, the relevant ad-
ministrative decisional process must be complete. American
Airlines, Inc. v. Herman, 176 F.3d 283, 291-292 (5th Cir. 1999).
Other courts of appeals have taken varying approaches to whether
certainty alone, or an evaluation within the broader statutory con-
text, is necessary to determine whether the first factor under
Bennett has been satisfied. Compare, ¢.g., Hindes v. FDIC, 137
F.3d 148, 162 (3d Cir. 1998) (because notification issued by FDIC
was the first step of a multi-step process, it did not constitute
FDIC's definitive statement and thus was not final), and Mobil
Exploration & Producing U.S., Inc. v. Department of the Interior,
180 F.3d 1192, 1198-1199 (10th Cir. 1999) (although agency letter
may have concluded that an audit should begin under the statute,
that did not consummate the decisionmaking process within the
overall statutory scheme that would satisfy the first prong for
finality), with Western Ill. Home Health Care, Inc. v. Herman, 150
F.3d 659, 663 (7th Cir. 1998) (agency letter characterizing situation
as a joint employee relationship, establishing the agency’s
“enforcement position,” satisfies the first prong of finality because
it is “not at all tentative”).
promulgation as if they were a consequence of EPA’s
preamble statements respecting implementation.”
b. Even if it is assumed that EPA’s preamble state-
ments respecting implementation constitute final
agency action, that action would not be ripe for judicial
review. The court of appeals’ concern over how to
reconcile Sections 172 and 181 is not yet fit for review
because the matter is too abstract and general: EPA
has neither fully developed its interpretation nor
attempted to exercise its implementation authority.
See, e. g., Ohio Forestry Ass n v. Sierra Club, 523 U.S.
726, 732-738 (1998); Abbott Labs. v. Gardner, 387 U.S.
136, 148-149 (1967).
The interplay among Section 107(d), Section 172, Sec-
tion 181, and other relevant provisions of the CAA is
complex. Judicial exploration of these issues would be
on much surer footing if the reviewing court had the
benefit of EPA’s full thinking and explanation of how
and why it has implemented a NAAQS in a particular
way, in a particular context, after the completion of the
relevant decisional process (including public notice and
comment) that actually implements the standard. Fur-
The court suggested that EPA's statements were final action
because by “promulgating a revised ozone NAAQS the EPA has
triggered the provisions of §§ 107(d)(1) and 172, which impose a
number of requirements upon the states * * [and] those areas
that do not comply will ultimately be required to do so.” Pet. App.
78a. But the triggered events are solely a consequence of promul-
gation of the revised NAAQS and have nothing to do with EPA’s
preamble statements respecting implementation.
Indeed, it is doubtful whether the dispute over implementa-
tion is sufficiently concrete to constitute a case or controversy
within the meaning of Article III. See Reno v. Catholic Social
Servs., Inc., 509 U.S. 48, 57 n.18 (1998) (the ripeness doctrine “is
drawn both from Article III limitations on judicial power and from
prudential reasons for refusing to exercise jurisdiction”).
25
thermore, deferring review would allow EPA the op-
portunity to work through the various implementation
provisions, reconcile any conflicts, and make any policy
judgments and apply its expertise as necessary to re-
solve ambiguities in the statute. See Ohio Forestry
Ass n, 523 U.S. at 783-734; Chevron, 467 U.S. at 842-
845. The importance of such a concrete setting for judi-
cial review is underscored by the court’s own confusion
regarding EPA’s interpretation, compare Pet. App.
48a, 44a, with id. at 80a-8la, and the extreme breadth
and generality of the court’s conclusion that “EPA can
enforce a revised primary ozone NAAQS only in con-
formity with [Section 181“ Id. at 81a.”
3. In our view, the jurisdictional preconditions of
final agency action and ripeness should have prevented
the court of appeals from reaching the merits of any
NAAQS implementation dispute. But even if the court
of appeals could have overcome those obstacles, its
decision on the merits is wrong. Congress “has not di-
rectly addressed the precise question” of the relation-
ship between Section 172 and Section 181 (see Chevron,
467 U.S. at 843); instead, it has left a gap for the agency
to fill (id. at 843-844); and the question is whether
EPA’s conclusion that Section 172 and Section 181 can
be applied simultaneously “represents a reasonable
accommodation of conflicting policies that were com-
mitted to the agency’s care by the statute” (id. at 845).
We first describe the origins of the relevant provisions,
including the terminology of “Subpart 1” and “Subpart
© The court, on rehearing, erroneously concluded that this issue
“would not benefit from a more concrete setting,” apparently be-
cause the issue is legal in nature. See Pet. App. 80a. The presence
of a legal issue does not, by itself, render review appropriate be-
fore the issue arises in a concrete case or controversy. See, ¢.g.,
U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S.
18, 21 (1994).
2.” We then explain the difference between EPA’s and
the court’s understanding of those provisions. Finally,
we briefly summarize why, if the issue must be decided
at this juncture, the court of appeals’ understanding is
flawed.
a. When Congress first enacted the CAA in 1970,
and authorized EPA to promulgate and revise NAAQS,
it expected that the various regions of the country
would meet the NAAQS in a relatively short period of
time. Attainment proved more difficult than expected,
and when Congress enacted the 1990 CAA Amend-
ments, it specifically addressed certain aspects of the
nonattainment problem. First, Congress preserved
(with some modifications) EPA’s general authority to
revise NAAQS at five-year intervals and to designate
nonattainment areas. See CAA §§ 107(d), 109(d), 42
U.S.C. 7407(d), 7409(d). Next, Congress enacted a new
Subpart 1, Part D, Title I of the CAA, which granted
EPA additional authority, set out in Section 172(a), to
classify nonattainment areas and to set attainment
dates under all new or revised NAAQS. 42 U.S.C.
7502(a). Section 172(a) makes clear that this authority
applies unless “classifications [or attainment dates] are
specifically provided under other provisions” of the Act.
42 U.S.C. 7502(a)(1)(C) and (2D). In addition, Con-
gress enacted a series of other new Subparts, encom-
passing Sections 181 to 191 of the CAA, to address
the problems raised by nonattainment of particular
NAAQS. Subpart 2 addresses the ozone NAAQS. Sec-
tion 181(a)(1) therein sets out a schedule establishing
“classification and attainment dates for 1989 nonattain-
ment areas.” 42 U.S.C. 7511( a). That schedule estab-
lishes those classifications and attainment dates based
on the one-hour ozone standard then in effect and sets
attainment dates that run from the enactment of the
1990 Amendments.
27
b. In response to public comments, EPA described
the relationship between Section 107, Subpart 1, and
Subpart 2. It stated in the ozone rulemaking that, once
EPA completes promulgation of a revised ozone
NAAQS, those provisions collectively require that
EPA: (1) designate nonattainment areas in accordance
with Section 107(d), and establish classifications and
attainment dates and take other implementing actions
for the revised ozone NAAQS under Subpart 1; and (2)
simultaneously continue to implement the provisions of
Subpart 2 for areas that have not yet attained under
the prior one-hour ozone standard. See 62 Fed. Reg. at
38,884-38,885. The court of appeals properly rejected
ATA’s argument that EPA lacked any authority to
revise the ozone NAAQS in light of the Subpart 2
classifications and attainment dates. Pet. App. 34a-37a.
But the court went on to conclude (prematurely, in our
view, see pp. 21-25, supra) that Subpart 2 precluded
implementation of a more protective ozone NAAQS.
See id. at 37a-44a. When EPA explained on
that the court’s construction would lead to irrational
results, the court revised its decision to state that
“EPA can enforce a revised primary ozone NAAQS
only in conformity with Subpart 2,” id. at 82a, which
apparently means that EPA can enforce its revised
ozone NAAQS under Subpart 1 once an area attains the
one-hour standard under Subpart 2, id. at 89a (Tatel, J.,
concurring). See p. 8, supra.
c. The court of appeals’ reasoning, even as modified
on rehearing and interpreted by Judge Tatel, is flawed.
Contrary to the court’s suggestions, Pet. App. 37a, the
CAA does not precisely address how to reconcile Sub-
part 1—which authorizes EPA to set new classifications
and attainment dates for revised NAAQS—with Sub-
part 2—which establishes a specific timetable for com-
pliance with the one-hour ozone standard in effect in
28
1989. The CAA surely does not dictate the result the
court of appeals has required.
Under Chevron, “if the statute is silent or ambiguous
with respect to the specific issue, the question for the
16 The court believed that the CAA specifies how those provi-
sions should be reconciled because Subpart 1 provisions do not
apply if “classifications [or attainment dates) are specifically pro-
vided under other provisions” of the CAA, see CAA § 172(a)(1)(C)
and (2)(D), 42 U.S.C. 750 ca C) and (2)(D). Pet. App. 37a. In
the court’s view, Subpart 2 provides classifications and attainment
dates for any ozone standard, including any revised ozone
NAAQS. That view, which is based on a highly technical argu-
ment, is wrong. The court reasoned that, because Section 181(a) of
Subpart 2 states that an “area designated non-attainment for
ozone pursuant to [Section 107(d)] * * * shall be classified at the
time of such designation” in accordance with the table in Section
181(a); and because Section 107(d) addresses designations under
both the one-hour ozone standard in effect in 1989 and future
NAAQS revisions; then Subpart 2 must govern the implementa-
tion of any ozone NAAQS. See id. at 38a-4la. That reasoning is
flawed because Section 181(a)’s reference to Section 107(d) is
cabined by the context of Subpart 2. It is clear from the statutory
context that Section 181(a) refers only to Section 107(d) designa-
tions of nonattainment areas under the one-hour ozone standard
that was in effect in 1989. For example: (1) Section 181(a)’s cap-
tion denotes that the Section addresses “Classification and attain-
ment dates for 1989 nonattainment areas” (emphasis added); (2)
Section 181(2) bases attainment dates and classification on an
area’s “design value,” specifically codifying the methodology of the
one-hour ozone standard then in existence; (3) Section 181(a) pro-
vides classification and attainment dates only for nonattainment
areas with ozone levels in excess of .012 ppm — the “design value”
in effect in 1989-1990 under the one-hour standard; and (4) Section
181(a) bases attainment dates by reference to 1990 and imposes
attainment deadlines that, for most areas, have already passed.
See 42 U.S.C. 7511(a)(1). Hence, the text and context of Section
181(a) indicate that Congress intended to provide classifications
and attainment dates only for nonattainment areas designated
under Section 107(d) for the then-current one-hour ozone standard.
See 42 U.S.C. 7407(d)(1)(C) and (4)(A).
court is whether the agency’s answer is based on a
permissible construction of the statute.” 467 U.S. at
848. EPA has reasonably concluded that Congress in-
tended that EPA would implement a revised ozone
NAAQS under Subpart 1 for all members of the Ameri-
can public, including those members that reside in
nonattainment areas governed by Subpart 2, “as expe-
ditiously as practicable.” See CAA § 172(a)(2), 42
U.S.C. 7502(a)(2); CAA § 181(a)(1), 42 U.S.C. 7511(a)(1).
There is no warrant for imposing a categorical
requirement that EPA must ensure compliance with
the inadequately protective one-hour ozone standard
before it can require efforts to attain the more protec-
tive revised ozone NAAQS.” To the extent that there
is a conflict between Subpart 1 and Subpart 2, it is up to
EPA to harmonize the applicable provisions, and the
courts must defer to EPA’s reasonable judgment on the
matter. Chevron, 467 U.S. at 845.”
17 For example, it may be “practicable”—and preferable from an
implementing State’s perspective—to achieve both the one-hour
ozone standard and the revised ozone NAAQS at the same time.
There is no reason to believe that Congress intended to preclude
that approach.
18 The court of appeals expressed concern that a practical con-
flict could conceivably arise for the Los Angeles nonattainment
area between Subpart 1’s attainment date for the revised ozone
NAAQS and Subpart 2’s attainment date for the one-hour ozone
standard. In the court’s view, Congress would not have intended
that Los Angeles comply with the revised ozone NAAQS before
Subpart 2’s statutory deadline for compliance with the one-hour
standard. See Pet. App. 4la. That concern, however, is over-
stated. The time deadlines set out in Section 181(a)(1) establish
the outer time limits for attaining the one-hour standard, see 42
U.S.C. 7511(aX(1). Los Angeles would be required to attain the re-
vised NAAQS under Subpart 1 no later than the same year that
marks the outer time limit for attaining Subpart 2’s one-hour ozone
standard. Compare CAA § 172(a)(2), 42 U.S.C. 7502(a)(2), with
30
In our view, EPA’s preliminary statements respect-
ing implementation do not constitute final agency action
and are not ripe for judicial review. But if the Court
concludes otherwise, then it should proceed to address
the merits of this important issue. On the merits, the
court of appeals erred in ruling that the CAA categori-
cally precludes the EPA from implementing the revised
ozone NAAQS under Subpart 1 until the nonattainment
areas described in Subpart 2 have attained Subpart 2’s
one-hour ozone standard.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
Gary S. GUZY Lots J. SCHIFFER
Genera! Counsel Assistant Attorney General
ROBERT G. DREHER LAWRENCE G. WALLACE
Deputy General Counsel Deputy Solicitor General
GERALD K. GLEASON JEFFREY P. MINEAR
MICHAEL L. Goo Assistant to the Solicitor
AMEY W. MARRELLA General
JAN M. TIERNEY DAVID J. KAPLAN
KEVIN W. MCLEAN MARY F. EDGAR
Attorneys 8
Enos Attorney.
Agency
JANUARY 2000
CAA § 181(a)(1) and (5), 42 U.S.C. 7511(a)(1) and (5). In any event,
the question of how EPA should reconcile any competing compli-
ance deadlines is clearly the type of issue that should first be
addressed by EPA through the implementation process, including
public notice and comment, and subject to judicial review in the
appropriate regional court of appeals. See CAA § 307(b), 42 U.S.C.
7607(b).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.